To Whom It May Concern – English version

June 30th, 2014 marks a turning point for Austria. Not only was the Vorratsdatenspeicherung (data retention) terminated preliminarily for good (no, really), the operation of TOR exit nodes supposedly was also declared a criminal offense by a regional criminal court. The accused was operating a TOR exit node which was being used fraudulently by a third party to transmit content of an illegal nature.

According to rumors reports the accused, the judgement was based on §12 of the Austrian penal code:
“Nicht nur der unmittelbare Täter begeht die strafbare Handlung, sondern auch jeder, der einen anderen dazu bestimmt, sie auszuführen, oder der sonst zu ihrer Ausführung beiträgt.”
(translation: Not only the immediate perpetator commits a criminal action, but also anyone who appoints someone to carry it out, or anyone who otherwise contributes to the completion of said criminal action.)

A possible interpretation would be, that The operator of an exit node is guilty of complicity, because he enabled others to transmit content of an illegal nature through the service.

This is a potential reversal in Austrian legal practice, where up to now the opinion was held that a service provider is not responsible for the transmitted content (according to the austrian E-Commerce-Law)

Until we have a binding judgement, it is a sensible precaution to turn off hosted services where data from third parties is transmitted (like Jabber, IRC, VPN, FTP, TOR exit nodes, TOR RELAYS!! …); at least temporarily. Whether this judgement only applies to natural persons or legal persons as well cannot be said at this time, as the judgement is not yet available in writing.

Futhermore it is still unclear, if the judgement will become binding and we hope fervently for a change of it on appeal.

Updates:
– The regional criminal court refered to is the Landesgericht für Strafsachen in Graz.
– An independent source The accused has verified this judgement to be based on §12 StGB (penal code).

32 comments

This is a good example of law being crumpled into a dagger against unwanted activities. The concrete traffic is just a pretext to attack tor. Any analogy makes the attack ridiculous, everybody knows it, and it is still happening ..

“(…) it is a sensible precaution to turn off hosted services where data from third parties is transmitted (like Jabber, IRC, VPN, FTP, TOR exit nodes, TOR RELAYS!! …); at least temporarily. (…)”

No, there are a few other more sensible precautions (not sorted in any preferred order):
* Migrate your servers to Tor/I2P. Begin your migration from vanilla intertubes to cipherspace. Don’t shut things down, instead migrate to a .onion/.i2p domain.
* Ignore the laws and keep doing what you did before. (No. I am serious.)

this is from the 2012 raid…the issue also at time was the hash and pot the cops found
Section 12 Serious Criminal Offenses and Less Serious Criminal Offenses. Chapter Two The Act. Title One Bases of Punishability.
which could be anything from a custodial sentence to probation to community work to a fine

doesn’t that make the phone company a guilty accomplice of _ALL_ plotting/scheming ever done over a phone call?

literally, if you *provide* the ability to _talk_ over a wire -OR- wireless, if that conversation leads to an illegal act … so the phone company is guilty of conspiracy!?!

maybe even the manufacturer of the phone!!

maybe even the company that _sold_ the phone to the consumer?!?

I would not only stop running a web server, or IRC server in Austria, but I would NOT want to be an Austrian service provider … or even the Govt agent who gives license to the phone-company/ISP. arguably, the authority that issues license to the phone/ISP is also guilty of conspiracy. for directly enabling the guilty to conduct their sordid affairs …

“doesn’t that make the phone company a guilty accomplice of _ALL_ plotting/scheming ever done over a phone call? ”

Basicly yes if you apply same logic but generally:
Law only applies to those who dont have financial resources build strong defence and fund political lobbies.

Goverments and Political elite get pissed when too many get anonymous way to say their opinions they need to maintain control so they can punish people that say wrong things and have wrong opinions. I dont mean just legal punishments but also punishment that people with wrong opinions dont get work or is fired things like that.